Jack Goldsmith

If President Trump ordered a senior government official to support the firing of special counsel Robert S. Mueller III, how should that person respond?...Presidential orders cannot ordinarily be ignored or dismissed. Our system gives the commander in chief extraordinary power. Jack Goldsmith, a Harvard University law professor and former assistant attorney general, explained in an email: “A subordinate in the executive branch has a presumptive duty to carry out the command of the president. If one doesn’t want to for any reason, one can resign — or refuse the order and face a strong likelihood of being fired.”

An op-ed by Jack Goldsmith. We don’t yet know why Mark Corallo, the spokesman for President Trump’s personal legal team, resigned yesterday. Politico, citing anonymous…

...Over the past few decades, political scientists have concentrated their study of norms on developing democracies, where they came to see such informal structures as tricky things — the lack of clear-cut consequences for violating them made them permeable. But in a 2012 paper, the political scientists Julia Azari and Jennifer Smith argued for a return to studying norms in American politics, an idea that turns out to have been prescient: In 2017, our attention has been snapped back to norms by a president who seems completely unconstrained by them..."I detest much of the president’s norm-defying behavior," Jack Goldsmith, a Harvard law professor who served in George W. Bush’s Justice Department, wrote on the blog Lawfare. "But I worry at least as much about norms related to our governance that have been breached and diminished as a result of, or in response to, Trumpism."

An op-ed by Jack Goldsmith. Many are debating the significance of today’s Per Curiam Supreme Court opinion that granted the government’s petitions for certiorari and its stay applications in part. Did the Court signal that it would uphold most elements of the decisions below, as some argued? Did it signal the opposite—that it would reverse most elements of the appellate court rulings? Will the case be moot by the fall? I think it is very hard to predict how the Court will decide the case next Term, except perhaps to say that if it reaches the merits, the claims of foreign nationals who lack a relevant relationship with a person or entity in the United States aren’t looking so good.

For someone on the job barely a month, Associate Attorney General Rachel Brand was already facing plenty of incoming fire from her critics. Her big problem now: Her ultimate boss, President Donald Trump, could soon be among them...“Brand is in a very tricky spot,” Harvard Law School professor Jack Goldsmith and Brookings Institution scholar Benjamin Wittes wrote in a joint blog post on Friday. Both men know Brand and “admire her a lot.” But they said they were worried by her lack of experience as a prosecutor “or even a background in criminal law.” They said she might now be confronting the “tough task of insulating the investigation from the erratic and inappropriate behavior of President Trump.”

A personal friend of U.S. President Donald Trump said Monday that the president is considering whether to get rid of special counsel Robert S. Mueller III, the former FBI director who has been assigned by the Department of Justice to pursue and oversee the Russia investigation. Legal experts however say this would be incredibly difficult, and if Trump succeeded it could trigger a crisis in American institutions...Legal experts agree it would be a mistake and have laid out why it could throw the nation into crisis if it succeeded. “This seems like such a bad idea—for the nation, and for the President—that I have a hard time believing it is a live possibility,” wrote Harvard Law Professor Jack Goldsmith, a former Assistant Attorney General and Special Counsel to the Department of Defense, in a blog post Monday.

President Trump awakened this morning (if he slept at all last night) and decided it would be a good idea to seize on the London terror carnage to launch a fresh Twitter attack on the courts and on his own Justice Department. In so doing, he may have given opponents of his immigration ban more ammunition against it in court...Jack Goldsmith, a Harvard Law School professor who served in various legal posts in George W. Bush’s administration, told me in an email this morning that Trump’s new tweets are “significant in at least two ways.”

The revelation that Donald Trump allegedly urged former FBI Director James Comey to drop a probe into former adviser Michael Flynn fueled speculation the president may have obstructed justice, but any penalty would likely come from Congress and not the criminal justice system, lawyers said Tuesday..."It's the longstanding position of the executive branch that the president cannot be indicted while in office," said Harvard law professor Jack Goldsmith, a top Justice Department official under President George W. Bush. "The remedy for a criminal violation would be impeachment."

An interview with Jack Goldsmith. The executive has a lot of legal power vested by the Constitution and Congress but what happens when the executive is careless with information, overreaches that authority or no longer has the full trust of the rest of the government?

...Legal and national security experts, including Harvard Professor Jack Goldsmith, say violating this oath of office alone is grounds for impeachment...Impeachment is a constitutional process by which Congress removes a president from office for "treason, bribery, or other high crimes and misdemeanours". "It's very hard to argue that carelessly giving away highly sensitive material to an adversary foreign power constitutes a faithful execution of the office of President," they wrote on the blog Lawfare. "Legally speaking, the matter could be very grave for Trump even though there is no criminal exposure." They suggested Mr Trump could feasibly face "a hybrid impeachment article alleging a violation of the oath in service of a hostile foreign power".

About a week ago, FBI Director James Comey went before the Senate Intelligence Committee to testify on two FBI investigations: one of Hillary Clinton and her emails, and another of Russian meddling in the 2016 election and any connections the Trump campaign may have had to the Russians. The former investigation was conducted and closed amid much public scrutiny and controversy. The second, no less controversial investigation is ongoing, but Comey refused to go into it in detail. And this Tuesday, Comey was fired, having never wrapped up the second investigation. So what happens to that still unfinished Russia investigation?...“The investigation will go forward in the short run,” said Jack Goldsmith, a professor at Harvard Law School and an assistant attorney general under George W. Bush. “The question is how vigorous it will be.”

A member of the Navy SEALs was killed and two other American service members were wounded in a raid in Somalia on Friday, the first American combat fatality there since the 1993 “Black Hawk Down” battle...As a result, the military is reviewing all its potential targets, examining updated intelligence reports on flows of displaced civilians, and confirming with aid organizations where they are operating in Somalia, as first reported by The Intercept last week...“D.O.D. has more cover to act aggressively when the president has a reputation for restraint and less cover when the president has a reputation for aggressiveness, because everything D.O.D. does will be judged through that lens,” said Jack Goldsmith, referring to the Department of Defense. Mr. Goldsmith is a Harvard law professor who dealt with counterterrorism legal policy as a senior Bush administration official.

President Trump ordered the military on Thursday to carry out a missile attack on Syrian forces for using chemical weapons against civilians. The unilateral attack lacked authorization from Congress or from the United Nations Security Council, raising the question of whether he had legal authority to commit the act of war...On Thursday, Mr. Trump said, “It is in this vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons.” He also invoked the Syrian refugee crisis and continuing regional instability. Jack Goldsmith, a Harvard law professor who led the Office of Legal Counsel at the Justice Department in the Bush administration, wrote that this criteria for what is sufficient to constitute a national interest was even thinner than previous precedents and would seemingly justify almost any unilateral use of force.

...The 2011 bombing of Libya, initially meant to prevent a feared imminent massacre by Qaddafi’s forces in Benghazi, was authorized by a Security Council resolution and conducted under the auspices of NATO, but as Jack Goldsmith pointed out on Lawfare last night, Obama’s Office of Legal Counsel also argued at the time that the president has the right to act unilaterally in defense of the “national interest,” which in the Libya case was “preserving regional stability and supporting the UNSC’s credibility and effectiveness”—language not all that unlike what Trump used last night.

Taking a step back from the particulars of the Susan Rice story and the investigation into Russian collusion, Jack Goldsmith and Benjamin Wittes explain the broader implications of an eroding public trust in the nonpartisanship of American intelligence agencies. After decades of misbehavior, including spying on American citizens for political ends, the intelligence agencies had lost credibility with the American public. In the 1970s, Mr. Wittes and Mr. Goldsmith write, the intelligence community entered a “grand bargain” with Congress that limited its power but restored its integrity. That “grand bargain” is now in peril.

A little over a year ago, Benjamin Wittes, the editor in chief of the blog Lawfare, made the case that Donald Trump, as a Republican presidential candidate, represented nothing less than a national-security threat...The warning was an early sign of the opposition to Trump that has since hardened among the national-security professionals and observers for whom Lawfare serves as a kind of bulletin board...Lawfare observes rules that most publications don’t, including a pledge never to publish classified information. Contributors generally tend to be hawkish and “more sympathetic to the executive, and more accepting of the seriousness of the counterterrorism threat and the need for tools like targeting and surveillance, than a lot of writers in the national-security space,” [Jack] Goldsmith says.

An op-ed by Jack Goldsmith. Many critics of President Trump, including a sizable number of Democrats in the Republican-controlled Congress, are wary about the incipient congressional investigations of Russia’s interference in the 2016 presidential election and the possibly related Russian entanglements with the Trump administration and campaign. They suspect that an independent investigation from outside the government is the only hope for checking a president who seems oblivious to press criticism, whose party controls Congress and who has the executive branch under his thumb. These worries are understandable but misplaced.

An op-ed by Jack Goldsmith. Former National Security Advisor Michael Flynn’s possibly criminal failure to register last year as a foreign agent is but the latest of many White House ethics lapses in the first seven weeks of the Trump presidency. Responsibility for this problem—like so many others in the young Trump presidency—lies at the feet of White House Counsel Donald McGahn.

Less than a month into his presidency, Donald Trump has faced no shortage of controversies. Donald McGahn — the fiery lawyer who has represented the president since before his election — has been at the center of virtually every one....Jack Goldsmith, a Harvard Law School professor and co-founder of the Lawfare blog, said that part of McGahn’s job is “ensuring that the president avoids legal controversy or related political controversy.” “The White House counsel’s responsibilities go far beyond technical legal compliance,” said Goldsmith, a former assistant attorney general heading the Office of Legal Counsel. “He is supposed to ensure compliance with ethics rules. And he is supposed to anticipate political problems related to legal issues that might adversely affect the president and take steps to protect the president. That McGahn clearly did not do.”

An article by Dahlia Lithwick and Jack Goldsmith. One of the central questions animating Jeff Sessions’ bid to be the attorney general of the United States was an abiding sense that—having worked closely with the Trump campaign and having given legal cover to some of Donald Trump’s most radical ideas—he could not be truly independent of the president. Before he was confirmed, Senate Democrats questioned Sessions repeatedly on whether he was capable of acting as an independent check on the executive branch, and Sessions repeated over and over again that he believed he could be. In some sense this debate obscured a deeper truth: The attorney general has a dual and complicated role with respect to the president, and it’s always been a fraught proposition to demand perfect independence. In 2007, Dahlia Lithwick and Jack Goldsmith, responding to a very different attorney general and very different questions about independence, attempted to explain why the relationship isn’t a simple one and how cures nevertheless exist. The original is below.

The Trump White House is nearing completion of an order that would direct the Pentagon to bring future Islamic State detainees to the Guantánamo Bay prison, despite warnings from national security officials and legal scholars that doing so risks undermining the effort to combat the group, according to administration officials and a draft executive order obtained by The New York Times...“It raises huge legal risks,” said Jack Goldsmith, a Harvard Law School professor and former senior Justice Department official in the Bush administration. “If a judge says the Sept. 11 authorization does not cover such a detention, it would not only make that detention unlawful, it would weaken the legal basis for the entire war against the Islamic State.”